JAMES J. MARINO & others vs. TOWN COUNCIL OF SOUTHBRIDGE.

7 Mass. App. Ct. 461

February 15, 1979 - April 25, 1979

Worcester County

Present: BROWN, GREANEY, & KASS, JJ.

The initiative provisions of a town charter adopted pursuant to the Home
Rule Amendment were properly invoked to require the town council to
place before the voters of the town a question whether the town council
should petition the Legislature under Section 8 of the Home Rule
Amendment to adopt legislation restoring the town meeting form of
government in the town. [463-465]

CIVIL ACTION commenced in the Superior Court on February 22, 1977.

The case was heard by Taveira, J., on a motion for summary judgment.

Douglas A. Randall for the defendant.

Carter Lee for the plaintiffs.

KASS, J. In 1973, the inhabitants of the town of Southbridge, acting conformably with art. 89 of the Amendments to the Constitution of the Commonwealth (the Home Rule Amendment) and G. L. c. 43B, as inserted by St. 1966, c. 734, Section 1, adopted the Southbridge Home Rule Charter. Under this charter, Southbridge, in lieu of a town meeting form of government, vested legislative functions in a town council and executive functions primarily in a town manager.

The plaintiffs are voters, taxpayers and property owners in Southbridge who desire a restoration of the town meeting form of government. Toward this end, the plaintiffs and their adherents have been engaging in a political

Page 462

chess match with the members of the town council. For purposes of this decision, it is necessary to describe only the last move. This was the presentation to the town council on February 4, 1977, of a petition signed by more than five percent of the registered voters of Southbridge requesting the town council, in accordance with Sections 11-2-1 and 11-2-4 of the Southbridge charter, to submit to the voters of the town the question of restoration of a town meeting form of government. [Note 1]

Sections 11-2-5 and 11-2-6 of the Southbridge charter impose on the town council the duty to order a special election within thirty days after certification of the initiative petition by the board of registrars of voters, or to schedule a vote on the question presented by the petition at the regular town election, if one falls within 120 days after certification of the petition. The town council, however, voted to reject the petition on the ground that it was not the appropriate procedure for a charter amendment under the charter itself, under Sections 3 and 4 of the Home Rule Amendment, or under Sections 3, 4, 10 and 15 of G. L. c. 43B (the Home Rule Procedures Act). The council voted, instead, to put the question of restoration of the traditional town meeting form of government to the voters as a nonbinding question at the next regular town election.

Thereupon the plaintiffs filed a complaint in the Superior Court asking the court to order the town council to hold a special election on their initiative petition. The plaintiffs moved for summary judgment on the pleadings and an agreed statement of facts. The motion was allowed, and judgment entered ordering the town council to hold a special town election. From this judgment the town council appealed.

Page 463

The plaintiffs' approach to charter repeal has been under Section 8 of the Home Rule Amendment which provides: "The general court shall have the power to act in relation to cities and towns, but only by general laws which apply alike to all cities, or to all towns, or to all cities and towns . . . and by special laws enacted (1) on petition filed or approved by the voters of a city or town, or the mayor and city council, or other legislative body, of a city, or the town meeting of a town, with respect to a law relating to that city or town." The town council responds that the initiative, referendum and petition-to-the-Legislature approach to charter reform is precluded by that portion of Section 2 of the Home Rule Amendment which says that "[t]he provisions of any adopted or revised charter or any charter amendment shall not be inconsistent with the constitution or any laws enacted by the general court in conformity with the powers reserved to the general court by section eight." In the same vein, the town council points to Section 6 of the Home Rule Amendment, which permits municipalities to adopt, amend or repeal local ordinances or by-laws in a manner "which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by section eight, and which is not denied, either expressly or by clear implications, to the city or town by its charter."

Rephrased, the town council argues that if a municipality once adopts a charter under the Home Rule Amendment, the exclusive avenue of amendment or repeal of that charter is through the more complex charter amendment provisions of c. 43B or the provisions of the Home Rule Charter itself.

1. The town council's position makes the question look more difficult than it is. The Home Rule amendment and c. 43B provide alternate routes to charter reform, the first entirely local, the second involving the intervention of the Legislature. While the Home Rule Amendment forbids the imposition of the Legislature's will on a particular municipality to the exclusion of other municipalities,

Page 464

Section 8 of the Home Rule Amendment provides for legislative action upon petition of the voters of the city or town. Section 8 is, after all, a provision of the Constitution, and there is something irretrivably illogical about the town council's contention that application of Section 8 procedures is inconsistent with the Constitution. In Selectmen of Braintree v. Town Clerk of Braintree, 370 Mass. 114 (1976), the court expressly held that the procedure authorized by Section could be used to increase the number of selectmen in Braintree, which had no special charter. The existence of a charter adopted pursuant to c. 43B appears to be the only factual distinction which prevents the Braintree decision from being on all fours. We think it is a distinction without a difference. We refer to that decision and do not here restate the legislative history which confirms the availability of a second avenue of charter reform by petition to the Legislature.

Action by petition of the inhabitants of a town to the Legislature is apt for raising the comparatively discrete question of charter revocation, because it does not set in motion the elaborate process for action required by Sections 3 and 4(2) of the Home Rule Amendment and G. L. c. 43B, Sections 4 and 10, particularly the selection of a charter commission. The language of the Home Rule Amendment and c. 43B deals with charter adoption, amendment or revision. It does not mention revocation. The avenue of charter repeal by initiative-referendum-petition frustrates no legislative purpose articulated in c. 43B or in the Home Rule Amendment; it introduces no cacophonous strains, as the town council would have us think, into the harmony of general and local law; and it confirms the right of self-government by the inhabitants of a city or town.

2. Since Section 8 provides a complete and independent source of citizen power to achieve charter reform (including the ultimate reform of repeal) it remains to consider whether the plaintiffs followed the appropriate procedures to implement Section 8. We rule that they did.

Page 465

There is no general law detailing procedures for filing or approving a voter's petition under Section 8(1). Opinion of the Justices, 370 Mass. 879 , 884 (1976). The Southbridge charter provides in Section 11-1-1 that the voters shall have the power to "propose . . . measures within the authority of the town council by initiative petition." Statute 1975, c. 790, Section 2, vested in the town council of Southbridge all powers and duties generally conferred on town meetings. Since the town council has the powers of a town meeting, it has the power to petition the Legislature, and this is then a "measure" within the authority of the town council. The initiative provisions of the Southbridge charter were properly invoked to require the town council to place before the voters of Southbridge the question whether the town council should petition the Legislature to restore the town meeting form of government.

Judgment affirmed.

FOOTNOTES

[Note 1] Specifically, the voters would be asked to vote for or against directing the town council to petition the Legislature to enact as a special law "An Act restoring the town meeting--selectman form of government in the town of Southbridge."